On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 87-499.
Gibbons, Chief Judge, Mansmann and Aldisert, Circuit Judges.
William E. Singer appeals from an order of the District Court which rejected the report and recommendation of a United States Magistrate that Singer's petition for a writ of habeas corpus be granted, and denied the petition. Singer is under sentence by the Court of Common Pleas of Bucks County, Pennsylvania, following his conviction of simple assault on his wife and stepdaughter and of aggravated assault on a police officer in violation of 18 Pa.Cons.Stat. § 2702(a)(3) (1982). His state court remedies on all issues he raised in his federal habeas corpus petition have been exhausted. We will reverse the district court order and remand for the entry of an order (1) granting habeas corpus relief unconditionally on the aggravated assault sentence and (2) granting habeas corpus relief on the simple assault sentences conditional upon the Commonwealth granting Singer a new trial on those charges within a reasonable time.
The Magistrate and the District Court decided the petition on the basis of the state court record. Singer's habeas corpus petition asserts: (1) that his conviction for aggravated assault was unconstitutional (a) because the record at trial is critically deficient with respect to a necessary element of the offense, and (b) because the trial court refused to permit the jury to determine that element; (2) that both the aggravated assault conviction and the simple assault convictions are unconstitutional because Singer was deprived at trial of the effective assistance of counsel; and (3) that illegally obtained evidence was admitted at his trial, and no opportunity was afforded him in the court of common pleas for a hearing on suppression of that evidence. We will refer separately to the facts of record with respect to each contention.
On September 15, 1983 Singer resided in Middletown Township, Bucks County, Pennsylvania with his wife and a twenty-one year old stepdaughter. On that date, during daylight, Singer and his stepdaughter became embroiled in an argument over her failure to contribute $25 weekly toward household expenses, and the use by her of a washing machine. Singer allegedly punched his stepdaughter, grabbed her by the throat, and threw her to the floor. When his wife intervened, he allegedly punched her. Thereupon both women fled the house and called the police.
Officer Patton responded. The women reported the domestic dispute to him, adding, according to Patton, that when they tried to get their car keys to leave the area Singer threatened to kill them. He observed some red marks and bruises on the stepdaughter's arms and the left side of her face. In accordance with Middletown Township police custom in domestic disturbance situations, Patton continued to observe the house and called for an additional police officer and a supervisor. While he was awaiting the assistance, Patton learned from the women that Mr. Singer had several rifles.
Police Chief Chitwood arrived on the scene in response to Officer Patton's radio call. He ordered the area cordoned off from the public, and over the course of over an hour attempted to speak to Singer from outside the house. Chitwood repeatedly asked Singer to open the door and allow the police to come in and check to make sure everything was all right. Singer refused to open the door, and explicitly asserted that the police had no right to enter his home without a warrant.*fn1 According to Chitwood, Singer "was talking to somebody on the phone and the conversation was like, 'If they try to come in here they're going to get hurt. Nobody is coming into my house, my castle, --'" (A. 204). The officers testified they also heard Singer running on the stairs. Singer never brandished, threatened to use, or mentioned a weapon. There was radio communication with police headquarters, and a judicial officer was nearby, to whom an application for an arrest warrant could have been made. Singer could not have left the area since the police surrounded the house.
Eventually Chief Chitwood lost patience, informing the officers he was going "to give him five minutes. If he doesn't open the door we are going to break a pane of glass and try to get in." (A. 205). Chitwood then announced to Singer that he was under arrest for assaulting his wife and stepdaughter and that they were coming in. He broke out a pane of glass in the front door and opened the door. Singer kicked it shut, resulting in two cuts on Chitwood's wrist. Chitwood then radioed officers at the rear of the house to make noises as if they were entering. When Singer ran to the rear of the house, Chitwood entered the front. Singer came running back toward the front, swung the telephone, on which he had been talking, over his head. He was subdued, but not before he choked and scratched Chitwood and kicked Officer Plebani.
Singer was convicted of a violation of 18 Pa. Cons. Stat. § 2702(a)(3) (1982), which then provided:
(a) Offense denied. A person is guilty of aggravated assault if he:
(3) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest; . . . .
(emphasis supplied).*fn2 Thus the legality of the arrest was an element of the offense. A habeas corpus court must make a determination whether there was evidence from which a factfinder could find each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
The trial court did not submit the question of legality of arrest to the jury. Instead, relying on Commonwealth v. Franklin, 248 Pa. Super. 145, 374 A.2d 1360 (1977) and Commonwealth v. Stortecky, 238 Pa. Super. 117, 352 A.2d 491 (1975), the trial court made its own determination, affirmed by the state appellate court, that the arrest was lawful. Singer contends that by taking from the jury the determination beyond a reasonable doubt of a substantive element of the offense the Commonwealth violated due process. See Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881(1975); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). We do not, however, rest our decision on this ground, because Singer also asserts that the Jackson v. Virginia evidentiary standard on the lawful arrest element of the offense has not been satisfied. See Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). If he has once been placed in jeopardy and the evidence is legally insufficient, Singer cannot be retried. See Burks v. United States, 437 U.S. 1, 18, 57 L. Ed. 2d 1, 98 S. Ct. 2141(1978).
The Commonwealth does not contend that probable cause to believe that Singer had previously assaulted his wife and stepdaughter not in the presence of the arresting officer, would permit a warrantless arrest in Singer's home. Warrantless entries into a home are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). The Commonwealth, instead, offers two defenses to the habeas corpus petition.
The Commonwealth's first defense is that Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) forecloses consideration of the illegal arrest claim. There is no merit to this defense. Stone v. Powell deals only with the nonavailability of habeas corpus collateral review as a means of enforcing the exclusionary rule as a prophylaxis against Fourth Amendment violations. It has no application to other constitutional violations. Rose v. Mitchell, 443 U.S. 545, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979); Kimmelman v. Morrison, 477 U.S. 365, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986). Where, as here, the issue is sufficiency of the evidence on an element of the offense, the controlling precedent is Jackson v. Virginia, supra.
The Commonwealth's second defense is that the trial court's finding that the arrest was lawful is supported by the record. The Commonwealth contends, and the state courts held, that the warrantless entry and arrest in Singer's home was justified by exigent circumstances. We hold that no factfinder could on this record find exigent circumstances beyond a reasonable doubt. First, while domestic violence is a serious matter, the victims of the assault were no longer in the house and were in no danger. Second, while the women told the police Singer owned long guns they did not say he ever threatened them or anyone else with them. He was not seen holding a gun. He never threatened the officers with a gun. Singer was in the house, and refused to come out. There was no chance that he could escape, however, in the minimum time it would take to obtain a warrant. The entry was in daylight, but a judicial officer was available during the day. Finally, the entry was made forcibly, not peaceably, and in face of the assertion of Fourth Amendment rights. Finally, all the circumstances relied on by the Commonwealth as evidence of exigent circumstances were known to Chief Chitwood as soon as he arrived at the house. He nevertheless chose to talk to Singer for roughly an hour and a half. He stood on the porch talking through the door, evidencing no concern for his safety or that of other officers. The long guns, even if they were evidence relevant to the assault on the women, could not be flushed down a toilet like familiar forms of contraband. The trial court concluded that Chitwood could not send an officer to procure a warrant because a lethal attack might come from the house at any moment. There is no evidence that any rational person would so believe, and no evidence that the police chief or the officers did so believe.
The Commonwealth's proof on the legality of the arrest cannot be found to support a finding on that element of the defense beyond a reasonable doubt or by any other evidentiary standard. Thus, the writ of habeas corpus must issue unconditionally with respect to the aggravated assault charge.
Singer also challenges his conviction on the simple assault charges on the ground that he was deprived of the effective assistance of counsel. He was, of course, entitled to the assistance of counsel at every critical stage of the prosecution. See Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970) (Sixth Amendment right to counsel at preliminary hearing); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (right to counsel at pre-trial line-up); Powell v. Alabama, 287 U.S. 45, 57, 77 L. Ed. 158, 53 S. Ct. 55 (1932) (right to counsel from time of arraignment; appointment on day of trial too late). See also Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962) (cannot presume waiver of right to counsel from a silent record).
There is no record of what transpired at Singer's arraignment or preliminary hearing. The attorney representing the Commonwealth represented to the Federal Magistrate, and confirmed in this court, that any transcript of that proceeding is lost. The state court record commences for purposes of habeas corpus review on the morning of Singer's trial.
The trial proceedings commenced with examination of prospective jurors for bias by the presiding judge and the prosecutor. At this point the judge asked who was acting as ...